CIC-Allianz Insurance Limited v ACL
[2021] NSWPIC 467
•17 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | CIC-Allianz Insurance Limited v ACL [2021] NSWPIC 467 |
| CLAIMANT: | ACL |
| INSURER: | CIC-Allianz Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 17 August 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Approval of settlement; section 6.23 of the Motor Accident Injuries Act, 2017; non-economic loss; claimant under legal incapacity as result of injury; son appointed as appointed representative under rule 97(1) of the Personal Injury Commission Rules; claimant now 86 years of age; injured as passenger on bus; significant pre-existing conditions including injuries sustained in a number of falls and injury sustained in an earlier motor vehicle accident; at date of accident independent in personal care, meals delivered and cleaner once a fortnight; mobilised with a walking stick both inside and outside home including catching buses; accident caused fracture of the left femur; underwent total left hip replacement surgery; ongoing left hip pain, requires 4-wheel walker to mobilise in the community and walking stick at home; loss of confidence and becoming increasingly dependent; Held - settlement of claim for damages for non-economic loss approved. |
| DETERMINATIONS MADE: | 1. This proposed settlement is approved. 2. The proposed settlement is approved under s 6.23(2)(b) of the Motor Accident Injuries Act 2017. |
Introduction
On 25 September 2019 ACL (the Claimant) sustained serious injury in a motor vehicle accident (the accident).
ACL has made a claim against CIC Allianz Insurance Limited (the insurer) of the at fault vehicle, for lump sum damages.
The insurer accepted liability for ACL’s claim for statutory benefits and has paid treatment benefits to, or on behalf of ACL.
The insurer has accepted that ACL had non-minor injuries and pursuant to Division 3.4 of the Motor Accident Injuries Act 2017 (the MAI Act) she is entitled to payment of reasonable treatment and care for the rest of her life for her accident caused injuries.
The insurer has conceded ACL sustained an injury to her left hip which has caused a permanent impairment of greater than 10%. This means ACL is entitled to recover damages for non-economic loss.
ACL and the insurer have agreed to settle the claim for lump sum damages for the sum of $120,000. Because ACL is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act.
ACL’s son holds a Power of Attorney for ACL and has been her authorised representative in relation to the claim.
Pursuant to rule 97(1) of the Personal Injury Commission Rules I appoint ACL’s son as the appointed representative entitled to represent ACL who is under legal incapacity as result of the injury she sustained in the accident.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
I held a teleconference on 16 August 2021. ACL has been hospitalised with a fracture of the right wrist since the beginning of July 2021. Having regard to the impact of the pandemic and the lockdown it was not possible for ACL to access a private room and telephone to participate in the teleconference. For that reason, ACL was represented by her son. The insurer was represented by Mrs Katie Jackson
Jurisdiction of the Personal Injury Commission
The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act, 2020. I am a Member of the Motor Accidents Division of the PIC. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
The relevant law
Section 6.23(1) of the MAI Act provides a claim for damages cannot be settled within two years after the accident unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%.
Section 6.23(2) and (3) of the MAI Act requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Guidelines.
Clause 7.38 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement satisfies the timing requirements in s 6.23(1) of the Act;
(b) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by a claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the ACL, and taking into account any proposed reductions or deductions in the proposed settlement, and
(c) ACL understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
Documents considered
· A1 Application for Personal Injury Benefits dated 11 October 2019.
· A2 Application for Damages under Common Law dated 18 October 2020 and Dispute Notices/Determinations.
· A3 Liability notice – benefits post 26 weeks dated 4 February 2021.
· A4 Liability notice- claim for damages dated 21 January 2021 and relevant correspondence.
· A5 Letter to ACL, conceding the 10% whole person impairment threshold dated 27 October 2020.
· A6 Letter from insurer conveying section 6.22 offer of settlement dated 7 June 2021.
· A7 Email correspondence from ACL’s son, advising offer accepted on behalf of ACL dated 9 June 2021 and Medical Reports/Certificates of Fitness.
· A8 Report of Edgecliff Hearing dated 8 January 2019.
· A9 Activities of Daily Living Assessment Report of Rehab Consulting.
· A10 Rehabilitation Progress Report no. 2 of Rehab Consulting dated 23 May 2019.
· A11 Rehabilitation Case Closure Report of Rehab Consulting dated 1 July 2019.
· A12 NSW Ambulance report dated 25 September 2019.
· A13 Operation report of Dr Andreas Loefler dated 27 September 2019.
· A14 Activities of Daily Living Assessment Report of Greenlight Human Capital dated 10 December 2020.
· A15 Certificate of Fitness dated 3 February 2021.
· A16 Discharge Referral Summary of Royal North Shore Hospital dated 28 December 2018.
· A17 Physiotherapy Discharge records of Wolper Jewish Hospital dated 14 January 2019.
· A18 Clinical records of Wolper Jewish Hospital of 21 October 2019.
· A19 Clinical records of Prince of Wales Hospital of 20 January 2020.
· A20 Clinical records of Dr Andreas Loefler.
· A21 Clinical records of Dr Bletsas of Maroubra Medical Centre as at 24 June 2020.
· A22 Wellness Program – Progress Notes of Simon Kerrigan as at 13 August 2020.
· A23 Clinical records of Dr Ralph Mobbs of Neuro Spine Clinic as at 2 September 2020.
· A24 Clinical records produced by Royal North Shore Hospital as at 11 November 2020.
· A25 Updated clinical records of Dr Bletsas as at 4 February 2014.
· A26 Insurer’s Submissions.
· Certified copy of the Power of Attorney dated 25 May 2007.
· Certified copy of the Drivers Licence of ACL’s son.
Review of the evidence
The pre-accident medical history
ACL is now 86 years of age.
The clinical records of Dr Bletsas (A21, A25) show ACL suffered injury in a number of falls as well as injury in a motor vehicle accident on 25 December 2018 (the 2018 accident). Conditions diagnosed include the following:
· Left total knee replacement (2005).
· Fracture left elbow (2007).
· Osteopenia (2007).
· Hypercholesterolaemia (2007).
· Right total knee replacement (2008).
· Left foot arthritis (2012).
· Severe sciatica – with a right lumbar laminectomy and rhizolysis at L4/5 (2014).
· Osteoarthritis (onset 2015).
· Pulmonary nodule (onset 2018).
· Bilateral cataracts (onset 2018).
· C6/7 spinous process fracture – accident on 25 December 2018.
· Hearing impairment – exacerbated by the 25 December 2018 accident.
· Meningioma (onset 2019).
ACL consulted Dr Ralph Mobbs neurosurgeon on 29 September 2014. His clinical records include a report dated 29 October 2014 where he diagnosed severe central canal stenosis at L4/5. ACL underwent keyhole decompression on 24 November 2014. In a report dated 14 January 2015 Dr Mobbs recorded ACL’s symptoms had dramatically improved and she was happy with the results.
Further, the clinical records of Dr Bletsas contain the following entries of note:
· On 25 July 2014, pain management was discussed, and the level of mobility was classified as Internal.
· On 17 July 2015, osteoarthritis was recorded.
· On 21 July 2015 – ACL attended in a wheelchair having recently fallen downstairs.
· On 4 August 2015, it was reported ACL was suffering a right trapezius muscle sprain since her fall.
· On 6 December 2016, ACL reported a sore left shoulder.
· On 16 December 2016, it was recorded that ACL had suffered a left supraspinatus tear and right supraspinatus tear.
· On 22 May 2017 ACL was certified eligible for a disabled parking permit. She was said to suffer chronic pain.
· On 26 May 2018, it was recorded ACL had attended the Emergency Department with cellulitis of the left leg.
· On 25 December 2018, ACL sustained a C6/7 spinous process fracture injury in a motor vehicle accident. (the 2018 accident) This was the subject of a claim.
· On 22 May 2019, it was recorded ACL had been issued with a Vital call.
· On 10 July 2019, it was recorded ACL had chronic obstructive pulmonary disease.
· On 16 September 2019, it was recorded ACL had knocked her upper lip in a fall 8 days earlier.
A hearing test with Edgecliff Hearing on 8 January 2019 diagnosed moderate-severe sensorineural hearing loss in both ears. It was recommended ACL trial hearing aids.
ACL underwent cataract surgery on 3 May 2019.
ACL came under the care of OT Rehab Consulting following the 2018 accident. In a closure report dated 1 July 2019 it was reported ACL had ongoing neck and left shoulder pain and restriction of movement. The left shoulder pain predated the 2018 accident and meant that even prior to that accident ACL required assistance with heavy laundry and bed making.
Since the 2018 accident ACL received a daily cooked meal from COA. She was mobilising independently inside and outside her home including climbing stairs. ACL was able to catch buses independently to complete light shopping and to attend hydrotherapy classes. ACL was able to complete light home cleaning. She was continuing to receive home-based physiotherapy bi-weekly.
ACL’s son advised prior to the accident ACL used public transport to travel to the city and from time to time she would catch the bus to St Ives or Chatswood to catch up with ACL’s son or his family.
The accident and its sequalae
On 25 September 2019 ACL was a passenger on the M10 bus from Sydney to Maroubra. She pressed the indicator for the bus to stop after the bus departed from the Avoca Street bus stop. After the bus stopped at her designated bus stop, ACL got up to depart the bus. However, the driver did not allow ACL sufficient time to depart the bus and accelerated causing ACL to fall heavily onto her left side.
ACL was conveyed to Prince of Wales Hospital and diagnosed with a fractured left neck of the femur and significant bruising. The clinical notes also recorded ACL presented with lower cervical spine tenderness and bilateral neck pain radiating into the shoulders. However, this pain was described as not new and was the same pain ACL had experienced since the 2018 accident.
In terms of ACL’s social history, the hospital clinical notes reported ACL was at that time independent in personal care, her meals were delivered, she had a cleaner once a fortnight and she mobilised with a walking stick.
On 26 September 2019 ACL was transferred to Prince of Wales Private Hospital where she underwent left total hip replacement surgery under the care of Dr Andreas Loefler on 27 September 2019.
On 3 October 2019 ACL was transferred to Wolper Jewish Private Hospital where she remained for rehabilitation until 21 October 2019.
Subsequently she underwent physiotherapy at home with Simon Kerrigan from Guide Healthcare. On 28 July 2020 Mr Kerrigan undertook a follow up review of ACL. He concluded she had experienced significant improvement in strength, mobility, balance and exercise capacity. Her confidence had increased, and she was able to ambulate up to 1.4 kilometres with her 4-wheel walker in the community and to ambulate within her home without using an aid, although she usually used a walking stick for safety. However, he also reported ACL continues to experience chronic left hip pain and hadn’t reached her goal of being able to ambulate in the community as per her pre-accident level.
ACL was reviewed by Dr Loefler on 2 June 2020, eight months post hip replacement surgery. ACL continued to use a wheelie walker. Her groin pain had gone but she continued to experience trochanteric symptoms in the lateral aspect of the left thigh which had not responded to a cortisone injection.
ACL participated in an activities of daily living assessment on 2 November 2020. In a report dated 10 December 2020 it was noted ACL was receiving personal care to assist with washing her back and feet, drying and dressing. She was also receiving domestic assistance including cleaning, washing, and changing the bed.
Further, it was reported ACL could mobilise slowly, independently indoors but required a wheeled frame when walking outside for long distances. ACL reportedly had lost confidence in her abilities and function since the accident and has become increasingly dependent.
Since the accident ACL has no longer been able to access public transport and her independence has been significantly curtailed.
Should I approve the settlement
Section 1.4 of the MAI Act defines non-economic loss as
(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.
The current maximum payable for non-economic loss is $590,000.
The medical evidence suggests there is only likely to be an inexorable increase in ACL’s pain and disability. Prior to the accident ACL had already suffered an impairment in her day-to-day function and required assistance to live independently. Unfortunately, the chronic left hip pain has increased that impairment and meant that ACL has now lost the ability to mobilise independently in her community.
ACL’s son informed me he read the settlement deed to his mother and she was aware of the terms of the settlement. He also informed me she had been adamant that she had no interest in securing legal representation in respect of this claim.
I am satisfied that ACL is aware of her right to have her reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses.
I am satisfied ACL understood that the settlement was only in respect of her entitlement to damages for non-economic loss.
I am satisfied ACL understood there will be no repayment to Centrelink or any impact on her ongoing entitlements.
Mrs Jackson advised the insurer would not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. She advised in the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement amount.
I advised ACL if a charge is raised by Medicare in respect of treatment expenses paid by Medicare relating to the injury, she should ask the insurer to pay that charge as part of their obligation to pay reasonable treatment costs.
Taking into account ACL’s pre-existing disability, her age and the further impact on her ability to live independently in the latter stage of her life I am of the view that the sum of $120,000 is an appropriate award of damages for non-economic loss.
Conclusion
I find the timing requirements of section 6.23(1) of the MAI Act satisfied where it is agreed ACL has sustained a permanent impairment greater than 10% and where it is now two years since the date of accident.
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by ACL.
I am satisfied ACL is aware she can seek legal advice but does not wish to do so.
I am satisfied ACL understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied ACL is willing to accept the proposed settlement.
Accordingly, pursuant to section 6.23(2(b) of the MAI Act I approve the settlement of ACL’s claim for damages.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
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